08-006258 Sheri L. Mcintosh vs. Dollar General Status: Closed Recommended Order on Thursday, March 4, 2010.

Summary: Petitioner proved she suffered a disability and was not provided a reasonable accommodation by Respondent employer. Recommend that the Florida Commission on Human Relations find that an unlawful employment practice occurred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERI L. MCINTOSH, )

)

Petitioner, )

)

vs. ) Case No. 08-6258

)

DOLLAR GENERAL, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on December 16, 2009, in Bronson,

Florida.

APPEARANCES

For Petitioner: Melanie A. Mucario, Esquire

Mucario, McHugh & Dowdel, PLLC

Post Office Box 781847

Orlando, Florida 32878-1847

For Respondent: Alva Cross Hughes, Esquire

Fisher & Phillips LLP

401 East Jackson Street, Suite 2525

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice, specifically whether Respondent failed to

accommodate Petitioner's alleged disability.

PRELIMINARY STATEMENT

Petitioner Sheri McIntosh filed an Employment Complaint of

Discrimination with the Florida Commission on Human Relations

(the Commission) on April 22, 2008. She alleged, among other

things, that Respondent Dolgencorp, Inc., n/k/a Dolgencorp, LLC,

(Dollar General or Respondent) discriminated against her based

on a disability or handicap. In this regard, Ms. McIntosh

alleges that Dollar General denied her a reasonable

accommodation during her employment. On October 23, 2008, the

Commission issued its determination finding cause that an

unlawful employment practice had occurred concerning

Respondent's failure to accommodate Petitioner's disability.

The Commission found no cause that Petitioner's employment had

been terminated based upon retaliation. On December 1, 2008,

Ms. McIntosh filed a Petition for Relief with the Commission.

In her Petition, Ms. McIntosh only sought redress for

Respondent's alleged failure to accommodate her alleged

disability. Ms. McIntosh did not contest the termination of her

employment, or any other issues on which the Commission found no

cause. Thus, the only issue before this tribunal is

Ms. McIntosh's failure to accommodate claim.

The matter was duly forwarded to the Division of

Administrative Hearings, and a hearing was completed on

December 16, 2009.

At the hearing, Petitioner testified on her own behalf

and called Donna Myers, Robert Barnes, Alain Arrendell, and

David Harbison. Respondent examined Ms. Myers, Mr. Barnes,

Mr. Arrendell, and Mr. Harbison as its own witnesses while they

were on the stand at the request of Petitioner. The parties

jointly offered Exhibits 1-12 into evidence. Petitioner also

offered one exhibit into evidence, a composite of her medical

records, to which Respondent objected. Judge Hooper reserved

ruling on Petitioner's Exhibit 1. The undersigned finds that

exhibit to be relevant to the issue of showing the time frame

for Petitioner's injuries and to the issue of what damages, if

any, should be awarded in this matter. The parties also offered

a joint Pre-Hearing Stipulation, which limited the issue in the

case to whether Respondent failed to accommodate Petitioner's

claim of a disability.

Between the date of the final hearing and the filing of the

transcript, Judge Hooper retired from government service. This

matter was thereafter transferred to the undersigned to review

the record and issue a Recommended Order. The Transcript was

filed on February 16, 2010. Petitioner and Respondent filed

their Proposed Findings of Fact and Conclusions of Law on

March 1, and February 26, 2010, respectively.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner was hired by Dollar General in December 2006

as the second shift Human Resources (HR) Representative I for

Dollar General's Alachua Distribution Center. As the second

shift HR Representative I, part of Petitioner's responsibilities

was to interact with the employees who worked on the second

shift.

2. Petitioner's immediate supervisor throughout her

employment was Donna Myers, Senior Human Resource Manager.

3. Ms. Myers interviewed and hired Petitioner.

4. Petitioner's job as a HR Representative required her to

conduct interviews, drug tests, participate in committees,

interact with employees, transfer employees, and other employee-

related duties.

5. Petitioner was qualified for the position as HR

Representative, having a master's degree in human resources

management.

6. Some concern existed among management as to whether

Petitioner could be as effective in her job if she were to use a

golf cart. The concern was whether she would be less

approachable by employees when driving around rather than

walking up to the areas where they worked.

7. Since there was an "open door" policy for employees to

approach Petitioner, she could always meet them in her office if

they had enough time during a break.

8. Company policy dictates that at least 10 percent of the

HR Representative's time should be spent "walking the floor."

Petitioner understood the walking requirement to be at least an

hour per shift.

9. Dollar General maintains and enforces an Anti-

Discrimination and Harassment Policy, which prohibits, among

other things, discrimination based on an employee's disability.

10. Dollar General's Anti-Discrimination and Harassment

Policy also contains a provision which provides, in pertinent

part, that it intends to comply with the Americans with

Disabilities Act by providing reasonable accommodations to

qualified individuals with disabilities.

11. Dollar General's Anti-Discrimination and Harassment

Policy includes a procedure that allows and urges any employee

who believes that that he or she is the subject of or has been

the subject of discrimination to report the alleged

discrimination by contacting a toll-free number.

12. Ms. McIntosh was an employee of Dollar General, was

aware of Dollar General's policy prohibiting discrimination and

harassment in the workplace based on disability, and

acknowledged receipt of Dollar General's Anti-Discrimination and

Harassment Policy.

13. Dollar General's Anti-Discrimination and Harassment

Policy applies to all employees. As an employee, Dollar

General's Anti-Discrimination and Harassment Policy applied to

Ms. McIntosh.

14. All of Dollar General's management team, who testified

at hearing, were aware of the company's Anti-Discrimination and

Harassment Policy.

15. Dollar General's Anti-Discrimination and Harassment

Policy instructs employees to speak with their supervisor or to

call the Employee Response Center to request an accommodation or

report any type of discrimination.

16. Ms. McIntosh took medical leave in October 2007. In

the October 25, 2007, certification for her medical leave,

Ms. McIntosh's treating physician estimated that the probable

duration of her condition was one to two weeks. Further, in the

November 15, 2007, recertification, Ms. McIntosh's physician

estimated that the probable duration of her condition was two to

three months.

17. Effective November 24, 2007, Ms. McIntosh's physician

released her to return to work without any restrictions. The

release does not indicate that Ms. McIntosh was unable to climb

stairs or walk for extended periods of time.

18. Ms. McIntosh was physically able to do her job when

she returned from medical leave.

19. Ms. McIntosh identified the disabilities for which she

requested accommodations as arthritis in hips and knees, a

dislocated disk, and a pinched nerve.

20. Ms. McIntosh claims that her disabilities limited her

ability to walk, stand, and climb stairs.

21. Petitioner recalls making her first request for an

accommodation to her direct supervisor, Donna Myers, to use the

golf cart to tour the million-square-foot facility, and to be

excused from climbing in September 2007 after being diagnosed

with arthritis in her hips and knees. Petitioner reports being

told that the golf carts were no longer allowed for use by HR

personnel.

22. Ms. Myers denied this exchange taking place, and

testified that the golf cart was available for Petitioner's use

at any time.

23. Robert Barnes, the distribution center manager,

confirmed Petitioner's understanding that the designated HR golf

cart was no longer used in HR.

24. Petitioner also reported her October 2007 injury to

Ms. Myers.

25. Petitioner was even seen at the emergency room by

Mr. Barnes.

26. The medical leave paperwork was submitted to Ms. Myers

by Petitioner. Dollar General had knowledge of Petitioner's

injuries and medical condition.

27. Upon her return to work in December 2007, Petitioner

again asked Ms. Myers about using the golf cart and decreasing

the amount of time she was required to spend on the floor of the

distribution center. This request was denied. Again, Ms. Myers

denied that this exchange took place between Petitioner and her.

28. Petitioner began to use a cane or walking stick to

help her get around the distribution center. Ms. Myers

acknowledged seeing Petitioner walking with aid of the stick.

29. Petitioner is firm in her testimony that she informed

her supervisor and others up the chain of command of her

condition and her need for an accommodation. Nevertheless,

Ms. Myers denies that Ms. McIntosh asked to use a golf cart, to

be relieved of her responsibility to walk the facility to

interact with employees, or to be excused from walking up and

down the stairs to meet with employees.

30. A series of correspondence and emails supports

Petitioner's claim that Dollar General's management was aware on

some level of the seriousness of her physical limitations.

Medical records that were submitted to Ms. Myers in October 2007

by Petitioner describe her knee pain and inability to walk up

stairs. Those records estimate two weeks before Petitioner's

return to work.

31. The October medical report led to a November 9, 2007,

letter from Ms. Myers to Petitioner requesting an updated

medical certification. Petitioner complied and provided a

medical certification showing the knee injury to be more serious

than first thought and accompanied by a herniated disc. This

report evidenced a return to work time of two to three months

after physical therapy and additional diagnostic procedures.

32. Finally, Dollar General received a Fitness for Duty

form from Petitioner's health care provider stating a return to

work date of November 24, 2007. Petitioner convinced her

physician to clear her for work under the belief she had to be

qualified at 100 percent in order to return.

33. Prior to raising the issue of her medical condition,

Petitioner had a stormy relationship, at times, with her

supervisor, Ms. Myers. An exchange of emails occurred in March

and April of 2007 between Petitioner and Mr. Harbison detailing

Petitioner's issues with Ms. Myers.

34. Petitioner did not ask Mr. Harbison, who was in her

direct chain of command, to modify the responsibilities of her

job in any way, nor did she mention -– until her suspension in

March 2008 -– that she allegedly requested and was denied a

reasonable accommodation.

35. Petitioner did not call Dollar General's Employee

Response Center to request an accommodation for her medical

condition. Petitioner believed that hotline to be only for

hourly employees, although Dollar General's written policies did

not dictate any such restriction.

36. When Petitioner returned to work in December 2007

after receiving treatment for her knee and back injuries, she

experienced difficulties in standing for extended periods, in

walking, and in climbing stairs. The pain she experienced was

intense when engaging in any of these activities. She was able,

despite the pain, to perform tasks of daily living, such as

bathing and dressing herself, which allowed her to go to work.

37. In addition to not being permitted to use the golf

cart to perform her job, Petitioner had a broken chair in her

office which made it more difficult for her to get relief when

she was not walking the distribution center floor. She was

first able to get a chair from the office next door to hers, and

then Mr. Arrendell allowed her to bring in a chair from the

conference room.

38. Petitioner recalls many instances of interaction with

her supervisors and managers about her physical limitations,

including discussions about her inability to walk in a Christmas

parade and her inability to stand up without leaning against a

wall during a staff presentation she made. Dollar General's

witnesses were not able to recall the substance of these

interactions, except for remembering that Petitioner had an

issue of some sort regarding the parade.

39. Petitioner was suspended in early March 2008, pending

an investigation, and her employment was ultimately terminated

on March 11, 2008, for conduct unbecoming of an HR professional.

No evidence was produced at hearing as to the circumstances

leading to her dismissal.

40. Petitioner did not have surgery related to her back or

knee conditions until after she left the employ of Dollar

General. She received pain management until she had surgery on

her back. She received a consultation for her knee injury, but

never had surgery performed.

41. Upon leaving her employment, she had no insurance to

cover her medical bills. The medical bills amounted to

approximately $200,000, with the hospital bill for her surgery

being $106,000 by itself.

42. Petitioner has suffered financial losses which led her

to borrow money for food, for her electric bill, losing her

truck, losing her home insurance, and becoming three months

behind on her mortgage.

43. Petitioner has suffered emotionally as well. She

suffers anxiety attacks and has had suicidal thoughts.

44. Petitioner tried to return to work after leaving

Dollar General. She secured a manager's job with Cato, a

women's fashion store. The job did not require any heavy

lifting or climbing of stairs. Her salary there was

approximately half of her $43,000 salary at Dollar General. She

worked at Cato for less than six months, earning gross pay of

$11,600. She left when she suffered pain that required a trip

to the emergency room which resulted in her having her back

surgery. She did not return to work at Cato.

45. Petitioner's only other earnings after leaving Dollar

General were unemployment compensation benefits of $498 every

two weeks, plus a $25 bonus from the federal stimulus package.

46. Petitioner could have performed the essential

functions of her employment if a reasonable accommodation had

been made for her physical limitations.

47. Dollar General has made accommodations for employees

with physical limitations in the past, generally in the context

of a workers' compensation injury.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 760.01 et seq. , Fla.

Stat.

49. Petitioner is an "aggrieved person," and Respondent is

an "employer" within the meaning of Subsections 760.02(10) and

(7), Florida Statutes, respectively. Section 760.10, Florida

Statutes, makes it unlawful for Respondent to discharge or

otherwise discriminate against Petitioner based on an employee's

disability.

50. It is an unlawful employment practice for an employer

to discriminate against any individual with respect to

compensation, terms, conditions, or privileges of employment,

because of such individual's handicap. § 760.10(1), Fla. Stat.

51. "Handicap" is defined in Subsection 760.22(7), Florida

Statutes, as follows:

(a) A person has a physical or mental

impairment which substantially limits one or

more of major life activities, or he or she

has a record of having, or is regarded as

having, such physical or mental impairment;

. . . .

52. This definition is essentially similar to the

definition in the Americans with Disabilities Act of 1990 (ADA),

42 U.S.C. §§ 12101-12213, which defines a disability as:

(a) A physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(b) A record of such an impairment;

(c) Being regarded as having such an

impairment.

53. Factors to consider when determining whether an

individual is "substantially limited include: (1) the nature

and the severity of the impairment; (2) the duration or expected

duration of the impairment; and (3) the permanent or long-term

impact, or the expected permanent or long-term impact of or

resulting from the impairment." See 29 C.F.R. § 1630.2(j)(2).

54. An impairment's minor interference in major life

activities does not qualify as a disability. See Toyota Motor

Mfg., Ky., Inc. v. Williams , 534 U.S. 184 (2002).

55. Petitioner has the ultimate burden to establish

discrimination either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581-82 (11th Cir. 1989).

56. This is a case involving both direct and

circumstantial evidence of Petitioner's disability. Therefore,

a discussion of both evidentiary standards is in order.

57. The burden of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802-03 (1973). Federal discrimination

law may be used for guidance in evaluating the merits of claims

arising under Chapter 760. Tourville v. Securex, Inc. , 769 So.

2d 491 (Fla. 4th DCA 2000); Greene v. Seminole Electric Co-op.,

Inc. , 701 So. 2d 646 (Fla. 5th DCA 1997); Brand v. Fla. Power

Corp. , 633 So. 2d 504 (Fla. 1st DCA 1994).

58. Florida courts have recognized that actions for

discrimination on the basis of disability are analyzed under the

same framework as Americans with Disabilities Act (ADA) claims.

Chanda v. Englehard/ICC , 234 F.3d 1219 (11th Cir. 2000). The

ADA defines a disability as a physical or mental impairment that

substantially limits one or more of the major life activities of

an individual. Id. at 1221.

59. If Petitioner succeeds in making a prima facie case,

the burden shifts to Respondent to articulate some legitimate,

nondiscriminatory reason for its conduct. If Respondent carries

this burden of rebutting Petitioner's prima facie case,

Petitioner must demonstrate that the proffered reason was not

the true reason, but merely a pretext for discrimination.

McDonnell Douglas , 411 U.S. at 802-03.

60. Applying the required standard of proof, Petitioner

has established a prima facie case of disability discrimination

which requires that she 1) have a disability; 2) she is

qualified to perform the essential functions of the position

either with or without reasonable accommodations; 3) she

identified reasonable accommodations; and 4) she was unlawfully

discriminated against because of her disability. Schwertfager

v. City of Boynton Beach , 42 F. Supp. 2d 1347, 1357 (S.D. Fla.

1999) ( citing Willis v. Conopca, Inc. , 108 F.3d 282, 283 (11th

Cir. 1997)). Petitioner must satisfy all elements of a prima

facie case under the ADA in order to meet her burden. She has

done so.

61. Once Petitioner has established a prima facie case of

discrimination, Respondent's burden on rebuttal is to produce a

legitimate, nondiscriminatory reason for the challenged

employment decision. See McDonell Douglas , 411 U.S. at 802.

"This burden is merely one of production, not persuasion, and is

exceedingly light." See Texas Dept. of Cmty. Affairs v.

Burdine , 450 U.S. 248, 254 (1981); Lee v. Russell County Bd. of

Education , 684 F.2d 769, 773 (11th Cir. 1982). Petitioner

requested two accommodations: 1) that she be allowed to use a

golf cart to get around the million-square-foot facility; and

2) that she not be required to climb the stairs due to her knee

and back pain. Respondent offered testimony that the golf carts

were no longer available for use in the HR Department due to

their needed use elsewhere. Also, Respondent believes it

important for its HR Representatives to climb the stairs and

have access to all areas where employees might be working.

However, diverting the use of a golf cart to accommodate

Petitioner could hardly be seen as creating an undue hardship.

Also, the employees could come down the stairs to visit with

Petitioner which was not shown to create either an undue

hardship or interfere with the business of Dollar General. Even

if Respondent chose not to accommodate Petitioner by allowing

use of the golf cart, they could have at least limited the time

she was required to walk the floor of the center. Employees

could have been allowed to visit Petitioner in her office or in

a more central place in the center to minimize time away from

their jobs. Simply put, Respondent's reasons for not making the

accommodations are weak, at best.

62. Clearly, Respondent failed to reasonably accommodate

Petitioner's disability as required by the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. , which

requires covered entities, including private employers, to

provide reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a

disability who is an applicant or employee, unless such covered

entity can demonstrate that the accommodation would impose an

undue hardship. 42 U.S.C. § 12112(b)(5)(A). Toyota Motor Mfg.,

Kentucky, Inc. v. Williams , 534 U.S. 184 (2002). The

accommodations requested in this case, namely the use of the

golf cart and less time spent walking the floor of the

distribution center, would not result in an undue hardship to

Respondent.

63. Petitioner suffered damages as a result of

Respondent's denial of a reasonable accommodation, and she

attempted to mitigate those damages. She sought medical help

for the original pain in her knees in order to be able to

perform the essential functions of her employment with Dollar

General. She sought medical treatment for the job-related

injuries to her knee and back so that she could continue her

work. The greater weight of the evidence supports the fact that

Respondent knew or should have known of Petitioner's physical

limitations and should have made reasonable accommodations to

allow her to continue to perform her job as HR Representative.

Respondent's claims that Petitioner would be less effective and

less approachable if she were to do her job in a golf cart

rather than limping across the floor of the million-square-foot

distribution center fail to refute her claim that the use of the

cart would allow her to continue performing her job. What makes

a person a good employee in the field of human resources is not

her ability to walk briskly across the plant, but how that

person interacts with and helps solve the problems of her

employees. Petitioner proved she could do her job with the

accommodations. Respondent's attempt to prove to the contrary

did not.

64. Since Petitioner has, by stipulation, limited the

issue in this case to whether an act of discrimination has

occurred by Respondent's failure to reasonably accommodate her,

but does not claim she was terminated as a result, an

administrative claim for damages is significantly limited.

65. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the respondent

remains at all times with the petitioner. Burdine , 450 U.S. at

253 (1981).

66. Petitioner offered proof that she was disabled. The

evidence demonstrated that from December 2007 until she was

terminated in March 2008, she was somewhat able to conduct major

life activities (including working, caring for herself, walking,

standing, and climbing stairs) while in pain. Ms. McIntosh

testified that she was physically able to do the job, even in

pain, from December 2007 (when she returned from medical leave)

until March 2008 when she was terminated. However, limping and

experiencing severe pain while performing a job that she must

have in order to support herself does not mean she does not need

an accommodation. The evidence demonstrated that her conditions

might not be permanent, but her return to work was not without

pain and her inability to perform her job at a high level was

without accommodation.

67. Petitioner returned to work in December 2007, even

though she was not fully recovered from her injuries. She did

this because she feared she might be fired if she did not

return. The evidence establishes that she was not fully

recovered from her injuries and needed further treatment and,

ultimately, surgery. From the personal descriptions of her

injuries, as well as the medical records provided, Petitioner's

supervisors should have clearly witnessed her inability to walk,

to climb stairs, and even to sit for extended periods of time in

her chair. Petitioner's injuries were severe enough to manifest

themselves in clearly identifiable behaviors on her part. She

was entitled to reasonable accommodations which were not

provided.

68. Subsection 760.11(6), Florida Statutes, provides, in

pertinent part, as follows:

If the administrative law judge, after the

hearing, finds that a violation of the

Florida Civil Rights Act of 1992 has

occurred, the administrative law judge shall

issue an appropriate recommended order in

accordance with chapter 120 prohibiting the

practice and providing affirmative relief

from the effects of the practice, including

back pay.

69. Since Petitioner's employment was terminated in this

case, she has rendered any claim for back pay moot. Petitioner

has neither challenged the termination in this matter nor

attempted to link the termination to a discriminatory employment

practice. Accordingly, the limitations on relief afforded

pursuant to Subsection 760.11(6), Florida Statutes, are even

further limited here. Nevertheless, a discriminatory employment

practice has occurred. Since Petitioner no longer works for

Respondent, a ruling that Dollar General shall cease and desist

from the unlawful practice and make reasonable accommodations

for Petitioner's disability will serve no measurable purpose

other than to validate Petitioner's well-founded belief that she

was the victim of a discriminatory practice at the hands of

Respondent. This is a hollow victory indeed. Petitioner has

cited no authority, nor has any been found by the undersigned,

that would permit the award of compensatory and punitive damages

in an administrative proceeding. Further, Petitioner has not

cited, nor has the undersigned found, any authority to allow an

award to Petitioner of her medical expenses, including the cost

of expensive surgery necessary to correct her ailing back

suffered as a result of her injuries while employed with Dollar

General. Such an award may only be made in a court of competent

jurisdiction pursuant to Subsection 760.11(5), Florida Statutes,

unless the Commission determines otherwise.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order finding that an unlawful employment practice

occurred; that Respondent should have provided a reasonable

accommodation for Petitioner's disability; awarding attorney's

fees to Petitioner in accordance with a Title VII action and

costs; and such other relief as the Commission shall deem

appropriate.

DONE AND ENTERED this 4th day of March, 2010, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March, 2010.

COPIES FURNISHED :

Melanie A. Mucario, Esquire

Mucario, McHugh & Dowdel, PLLC

Post Office Box 781847

Orlando, Florida 32878-1847

Alva Cross Hughes, Esquire

Fisher & Phillips LLP

401 East Jackson Street, Suite 2525

Tampa, Florida 33602

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 200

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.